State v. Gordon

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-09-1781.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: November 19, 2008

Before Judges Cuff and Baxter.

A jury found defendant Willie J. Gordon guilty of third degree burglary, N.J.S.A. 2C:18-2 (Count One), and third degree theft by unlawful taking, N.J.S.A. 2C:20-3a (Count Two). The judge imposed a discretionary extended term of ten years imprisonment with a five-year parole ineligibility term for burglary and a concurrent five-year term for theft. The appropriate fines, penalties and assessments were also imposed.

On June 18, 2005, Anna Bryja drove to St. Mary's Cemetery in Saddle Brook to visit her father's grave. She parked her Toyota Corolla on a small street approximately sixty feet from the grave. She brought candles to leave by the tombstone. Because the candles were heavy, she left her purse in her locked car.

Ciro Giue was also at the cemetery that day. He arrived at approximately 11:45 a.m. to visit the graves of his grandfather and other family members, parking his car near one of the entrances to their mausoleum. As Giue turned the corner of the mausoleum, he heard the sound of breaking glass and saw a black male standing between two parked cars. The driver's side window of the Corolla was shattered and glass was lying in the street. The man observed by Giue was walking towards the Corolla. The car closest to Giue was a Pontiac Grand Am.

According to Giue, the male walked over to the driver's side of the Corolla, pulled the door open, reached into the car and removed something. The man then spun around in Giue's direction and suddenly Giue and the man stood face-to-face, five feet apart. Realizing he was observing a burglary, Giue yelled for the man to stop. The man paused for a moment, allowing Giue to see that he was clutching a woman's purse. The man then ran toward the Grand Am, jumped into the driver's seat, and drove off. As Giue ran after the Grand Am, the man turned and smiled. The vehicle turned right out of the cemetery toward the town of Garfield. Giue obtained the license plate number and recorded it on the palm of his hand.

Giue called the Garfield Police Department on his cell phone and alerted them to the burglary. He provided a description of the man, his car, its license plate number, and direction of travel. Meanwhile, other mourners at the cemetery alerted Bryja to the incident. She walked over to her car and saw the broken driver's side window. Her purse, which contained approximately $600 in cash, her cell phone, credit cards, her driver's license, and other documents, was missing.

Detective John Fontana of the Saddle Brook Police Department was already at the cemetery due to prior burglary and theft complaints. When he was informed of the burglary, he and Detective Jeffrey Panagia responded in an undercover vehicle. When the officers arrived at the mausoleum, Giue provided Fontana with a description of the suspect and his car. After this brief interview, Fontana, accompanied by Panagia, left the cemetery in an effort to locate the suspect. Their search was unsuccessful. Meanwhile, they checked the license plate number provided by Giue and discovered that it belonged to Azalie Gordon of 712 E. 27th Street in Paterson. The make and model assigned to the plate number matched Giue's information.

Detectives Fontana and Panagia drove to Paterson to attempt to locate the car or stake out the address associated with the plate number. Before setting up surveillance, Fontana contacted the Paterson Police Department to advise them of the situation and arrange for back-up if necessary. Twenty minutes later the detectives arrived at the Gordon home and parked their unmarked car on the opposite side of the street, five or six houses from the Gordon home. About five minutes later, Detective Thomas Johnson of the Saddle Brook Police Department also arrived on the scene.

About ten minutes later, the Grand Am arrived. It drove down the block, past the Gordon home. Both undercover cars followed the Grand Am. Fontana was about to contact the Paterson Police Department about stopping the Grand Am when it pulled into a gas station. Panagia followed, parking the undercover car behind the Grand Am. Fontana, wearing his badge on a lanyard around his neck, walked up to the Grand Am, identified himself as a police officer, ordered the driver out of the car and arrested him. A cursory search of the driver and the car revealed nothing of evidentiary value. The driver was transported to the Saddle Brook Police Headquarters by the Paterson police.

Following the arrest, Giue returned to the Saddle Brook Police headquarters. There he was shown six photographs twice. Each time the detective on duty presented the photos in different order. In both instances Giue identified the photo of the driver of the Grand Am who was arrested at the gas station in Paterson as the man he encountered in the cemetery. Giue told the detective he was "very sure" the person depicted in the photograph marked "S-6-D" was the person he saw at the cemetery. Giue confirmed the photo identification at trial, telling the jury that defendant was the man he saw burglarizing the Corolla at the cemetery.

The prosecutor violated defendant's right to remain silent by eliciting testimony from a police officer that defendant "wasn't cooperative" when police tried to speak with him after his arrest (plain error).

Point 4

The trial court erred in allowing Officer Granitz to relay defendant's extra-judicial statements to him without first holding a hearing, outside the jury's presence, to determine whether defendant's statements were voluntary (plain error).

Point 5

Defendant's trial counsel was ineffective for failing to challenge the legality of defendant's arrest (plain error).

Point 6 Defendant's sentence is improper and excessive.

We affirm.

Defendant's conviction is predicated on the eyewitness identification by Giue. None of the items taken from the Corolla were found in the possession of defendant, the passenger in his car, or in the Grand Am. No tool or device capable of smashing a car window was found in defendant's car. No cuts or bruises were observed on defendant's hands or arms. Thus, a complete and accurate identification charge was critical to a just outcome of this trial. Defendant argues that the identification charge as a whole and the cross-racial identification instruction were incomplete and prejudiced the jury's consideration of the evidence. We disagree.

"[A]ppropriate and proper jury charges are essential to a fair trial." State v. Savage, 172 N.J. 374, 387 (2002). The prosecutor and defense attorney have the opportunity to submit requested jury charges; neither party is entitled to have the jury charged in the precise words they suggest. State v. Reddish, 181 N.J. 553, 613 (2004); State v. Thompson, 59 N.J. 396, 411 (1971).

Here, defendant objects to the portion of the charge that addressed identification and cautioned the jury about the known limitations of cross-racial identifications. We examine the charge as a whole to insure that the cited error is reviewed in context. State v. Wilbely, 63 N.J. 420, 422 (1973).

The cross-racial identification charge provided by the trial judge was the Model Jury Charge at the time of the trial. The Model Jury Charge on this issue has since been amended and expanded, Model Jury Charge (Criminal), Identification: Out-of-Court Identification (2007), and as amended is similar to the instruction advocated by defendant. This development does not suggest that the instruction provided by the trial judge was erroneous. The instruction, as given, communicated to the jury that they should assess the eyewitness identification with caution because "in ordinary human experience, people may have greater difficulty in accurately identifying members of a different race." The essence of the difficulty posed by cross- racial identification was effectively and succinctly communicated to this jury.

Similarly, we discern no error in the general identification charge provided to the jury. Defendant urges that the trial judge did not specifically tailor the charge to the facts of the case. Defendant argues that the trial judge should have related the general identification factors to the circumstances surrounding Giue's out-of-court identification through a photo array based on his encounter and observation at the cemetery. He insists that the judge should have instructed the jury to consider any prejudicial impact that may have tainted the photo array identification as a result of Giue possibly seeing defendant at the police station.

The judge provided an extensive identification charge drawn from the Model Jury Charge. He reminded the jury that it was to apply the many factors that may strengthen or undermine an identification to the circumstances at the cemetery and before and during the photographic identification at the police station. The judge did not cite the influence of a chance meeting between Giue and defendant at the police station because there was no evidence that any meeting had occurred. The trial judge is not obliged to address any and all possibilities that lack evidential support.

We also reject defendant's argument that the prosecutor elicited testimony from a State witness, Detective Stuart Granitz, that impermissibly commented on defendant's privilege against self-incrimination. This issue is raised as plain error. Defendant must, therefore, demonstrate that any error had the clear capacity to produce an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 333 (1971).

Defendant highlights testimony from Granitz during redirect examination. Granitz testified that, after the eyewitness identified defendant's photograph, Granitz attempted to question defendant but was informed by other detectives "[t]hat he wasn't cooperative." Immediately thereafter, the prosecutor and Granitz had the following exchange:

Q: And it is at that time, as you indicated earlier, that Mr. Gordon stated to you that he didn't want to give a statement?

A: That's correct.

Q: And that's perfectly [okay], correct?

A: That's correct.

Q: Everybody has a right, as you indicated earlier, to exercise their constitutional rights, correct?

A: Yes.

The latter question and answer referred to the detective's response to a series of questions posed by defendant's attorney during cross-examination. Defendant's attorney asked Granitz if he had attempted to interview defendant. He acknowledged that was so, and defendant's attorney continued to inquire about this attempt. In response, Granitz stated, "[h]e didn't want to talk to us. He was exercising his constitutional right, . . . ." Notably, defendant's attorney persisted in this line of questioning and asked:

Q: Specifically you, the cops and he declined to speak about the incident, is that right?

A: Yes.

Q: He continued to talk to you?

A: He continued to talk to me specifically about I'll tell you what you want to know if I could go home.

The Fifth Amendment to the United States Constitution provides: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . nor shall be compelled in any criminal case to be a witness against himself . . . ." U.S. Const. amend. V. Furthermore, an individual's right to be free from "compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States." Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 1492, 12 L.Ed. 2d 653, 658 (1964). Accordingly, the privilege against self- incrimination "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed. 2d 106, 110 (1965). Nor may a prosecutor elicit testimony from a witness at trial that makes reference to a defendant's silence at or near the time of his or her arrest. See State v. Muhammad, 182 N.J. 551, 565-67 (2005) (finding the defendant's privilege against self-incrimination was violated when the prosecutor repeatedly questioned witnesses about the defendant's silence at police headquarters shortly after he was detained).

Here, defendant elicited the first comment about the invocation of his privilege against self-incrimination. The detective responded that defendant had the right to remain silent and had exercised that right. The prosecutor's query on redirect examination produced an account of others' opinions of defendant that was quickly followed by the detective's reaffirmation that defendant had the right to remain silent. In this context, we discern no testimony elicited by the State to diminish this right.

Moreover, a hearing was not required to determine whether defendant's statement that he would cooperate if he could go home because it was a voluntary statement. The record reveals that defendant had received Miranda*fn1 warnings, that he had not waived any rights, and that his statement was volunteered rather than the product of a custodial interrogation. Volunteered statements are not affected by the Miranda rule. State v. Godfrey, 131 N.J. Super. 168, 178 (App. Div. 1974), aff'd, 67 N.J. 267 (1975).

Defendant also argues that various comments by the prosecutor during the course of his summation diluted the reasonable doubt standard and requires a new trial. This error is presented to us as plain error. Although the prosecutor departed from the accepted reasonable doubt definition, we conclude that the error did not have the clear capacity to produce an unjust result.

In State v. Medina, 147 N.J. 43 (1996). cert. denied, 520 U.S. 1190, 117 S.Ct. 1476, 137 L.Ed. 2d 688 (1997), the Court addressed two instances in which variations of the reasonable doubt charge misstated or diluted the State's burden to prove guilt beyond a reasonable doubt. In order to avoid such variations and error in the future, the Court adopted a definition of reasonable doubt and directed "trial courts not to deviate from the definition" contained in its opinion. Id. at 61.

Admittedly, the prosecutor's explanation of reasonable doubt departed from the prescribed definition. On the other hand, the definition provided by the trial judge at the commencement of the trial and at the conclusion of the trial adhered to the mandatory definition. Moreover, the trial judge admonished the jury that it was obliged to follow the law as given to it by him. We assume the jury followed this specific instruction and applied the proper definition of the reasonable doubt standard. State v. Feaster, 156 N.J. 1, 65 (1998), cert. denied, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001).

Defendant also argues that trial counsel did not challenge the authority of the Saddle Brook police to arrest him in Paterson and her failure to do so denied him effective assistance of counsel. We have noted repeatedly that ineffective assistance of counsel claims are best-suited for post-conviction relief proceedings following exhaustion of direct appeal. State v. Preciose, 129 N.J. 451, 459-60 (1992). We see no reason to depart from this practice in this case.

Finally, defendant argues that the judge did not follow the appropriate guidelines in his evaluation of the State's motion for a discretionary extended term, misidentified and misevaluated the aggravating factors, and imposed an excessive sentence. The decision to impose a discretionary extended term, as well as the base and minimum mandatory terms selected, cannot be faulted.

On Count One (burglary), the judge imposed a discretionary extended term of ten years inprisonment with a five-year period of parole ineligibility. In doing so, he had the benefit of a presentence report. Unquestionably, defendant meets the minimum criteria for imposition of an extended term pursuant to N.J.S.A. 2C:44-3a. Defendant had five prior convictions in the requisite ten-year period, three in this State and two in North Carolina, all of which involved theft.

Having determined to impose an extended term, the base term ranged from three to ten years. State v. Pierce, 188 N.J. 155, 174 (2006); N.J.S.A. 2C:43-6a(3), -7a(4). As noted, defendant has committed more than the minimum requisite offenses. In fact, his adult criminal history began in 1975 and continued virtually uninterrupted through 2005. His record is comprised of a series of theft offenses, most of which are minor in nature, committed in North Carolina, Florida, New York and New Jersey. In 1992, a judge in North Carolina imposed a ten-year term of imprisonment; in 1998, a judge in this State imposed a four-year term of imprisonment. Yet, defendant continued to commit more theft offenses, some were minor in nature, but one drew a three-year term of imprisonment and another a 364 day jail term. Thus, the assessment by the trial judge that there is a "strong likelihood he'll commit another offense" because of his conduct throughout his adult life is well-supported by the record. So, too, is the judge's conclusion that there is a "strong need to deter defendant and others from stealing anybody's property." In short, defendant's virtually uninterrupted career as a thief does not permit us to conclude that the judge erred in his identification or assessment of aggravating factors.

Affirmed.

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